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Question for my essay is written below:
What factors explain the International Criminal Court’s successes and failures in holding perpetrators accountable for breaches of international criminal law?
referencing style: Harvard
minimum 9 academic sources
INTRODUCTION
When the International Criminal Court was established in 1998, based on the Rome Statute(Rome Statute- International Criminal Court, 1998), the major focus was solely on the investigation of the offences and then the prosecution, so that the individuals could be tried. But, the crime to be so tried before the International Criminal Court, must be such which is heinous against the full society and the full international community. So, the crimes which get tried before the International Criminal Court, includes genocide, or waging war against a particular government or can be the crime against the humanity and also the aggression which get spread through embedded hatred. The judicial institution so formed as was stated in the opening remarks by Christian Wenaweser, in the Review Conference (Wenaweser, 2010), was shaped and thus created as the permanent court which will be prosecuting those crimes as mentioned above. The aftermath of the second World War, war trials were held in Nuremberg, Germany, and punished those offenders. The International Military Tribunal, so set up by the Allied Powers was in to conducting trials meant for the Axis criminals(Charter of the International Military Tribunal, 1945). The Tokyo Tribunal on the other hand(INTERNATIONAL MILITARY TRIBUNAL- FOR THE FAR EAST, 1946), was established in far east for punishing the offenders of the Japanese Class A categories. So, the urge was felt by the United Nations, for developing a permanent international court, which will step forward in dealing with the atrocities as mentioned above. It was a much-needed thing that an independent body was to be formed, which will then help in the impunity so prevailing, by trying those offenders who have the liability for the heinous crime, was initially perceived and thus identified in the Paris Peace Conference of 1919(Maparura, 2010) and came in to reality in 1998, with 120 countries voting in favour of the Rome Statute(Marle, 1999), and became operational only in 2002, against the ratification by 60 countries. As the International Criminal Courts will not be replacing any national courts, so it will add as a supplemental, for those who are either unwilling or are unable in exercising their own jurisdiction, on the suspects. In so doing, there are successes as well as failures, so this essay will look in to both of them so that creditability along with the effectiveness with the necessary drawbacks can be pointed out as against the International Criminal Court in ending the impunity. So, this essay will explain that, the International Criminal Court, have both successes and failures in punishing the contenders, who breaches the international criminal law.
Effectiveness
The International Criminal Court is a global court for the apparently powerless victimised people, who are subjected to abhorred crimes, to achieve a path to towards the peace. As the grave and the heinous threatens the society, the security as well as the well- being becomes a crucial factor, and this is where the International Criminal Court symbolises the hope to those who suffered unimaginable atrocities. Being, independent as well as impartial, so it is not at all politically motivated, so it is expected to get an investigation, in an unbiased manner. This court have the underlying motive of ending the impunity, through a remarkable system of human rights with the possible diplomatic achievements. Again, the very basic approach is in the prevention of crime, by setting the example by punishing the offenders of the crime caused against the humanity. In exact adherence to the Rome Statute (Rome Statute- International Criminal Court, 1998) by following the basic principle to provide an equality before the law. As the International Criminal Court is victim- centred, so the victims are in to receiving the reparations for rebuilding their once destroyed lives. In a recent achievement, the profound criminal, Ratko Mladi?, has been convicted for a term of 20 years following a series of genocides, and operations which the convict described as the ethnic cleaning, including many other heinous crimes is nothing but global justice (The Observer- International Criminal Justice, 2017)
Failures
But, the other side of success is the failures. Every criminal trial starts with the very fact that, a criminal will be arrested, with or without warrant, and then produced before the Court so as to initiate the criminal trial. But, as there is no police force present in the International Criminal Court, so when the warrants are to be implemented for arresting the offenders, and also when the concerned state shoes reluctance or unwillingness for indicting the suspects, then it becomes difficult in bringing the criminal before the law. In this view, if Sudan is taken as an example, then from the case of (Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman- Warrant of Arrest, 2007), it will transpire that, warrants of arrest was issued in 2007, where the 1st accused faced 49 charges of murdering the civilians in Kodoom villages(Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman- Warrant of Arrest, 2007) and also for the war crimes relating to the destruction of the property. On the other hand, the second accused had faced similar count of charges though in a greater number which also included rape(Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman- Warrant of Arrest, 2007). Similarly, for the case of (Prosecutor v. Omar Hassan Ahmad Al Bashir- Warrant of Arrest, 2009), the accused was none other than the head of the state, who were to be indicted by the International Criminal Court, and in here also the arrest warrant was issued twice on 2009 and in 2010. For commission of genocide by causing amputation of the civilians and also for causing them mental destruction, with torture which is the crime against the humanity at large(Prosecutor v. Omar Hassan Ahmad Al Bashir- Second Warrant of Arrest, 2010). So, this case raised the issue depicting state sovereignty and hence the obligation on part of the Security Council was in the arrest of the President Al Bashir. So, the difficulty crept in, since there was lack of police force who can cause the arrest of President Al Bashir, since he was the state head, and had the persistent control over the police as well as the military forces, and it is vividly clear that he will in no way will order his own in furtherance to his arrest. Furthermore, the state parties’ cooperation with the International Criminal Court, in causing the arrest of the President Al Bashir, was also subject to diplomatic immunity as depicted under Article 98 of the Rome Statute(Article 98- Cooperation with respect to waiver of immunity and consent to surrender, 1998). So, the conflict increased, both in maintaining the compliance with the International Criminal Court and also in protecting the diplomatic immunity under Article 98 of the Rome Statute(Article 98- Cooperation with respect to waiver of immunity and consent to surrender, 1998). So, it seems that, the State sovereignty is at a stake in holding it higher position, while maintaining the human rights at the same time. The International Criminal Tribunal, for Yugoslavia- ICTY (former), held in (Prosecutor v. Tadic- Decision on Jurisdiction, 1995), that, if the state sovereignty is allowed against human rights, then it will only render nuisance of justice, which received support from the President Charles Taylor(Prosecution v. Ghankay Taylor, 2011), followed by his arrest after resigning from the position of President. Coming back to the arrest of the President Al Bashir, the only thing which could make his arrest successful is that Article 27 of the Rome Statue(Article 27- Irrelevance of official capacity, 1998) is followed in verbatim, which will then invoke the justification of the indictment of the above- mentioned president, based on the very principle that, law must be equal for all, and specifically for those who are involved in to and are accused of the heinous crimes. So, based on the current situation, as Sudan had not ratified the Rome Statute, will maintain its position in the contingent future and in so doing the arrest of the President Al Bashir, and neither he himself will authorise his own arrest. Thus, the very hard-core fact surfaces, which is that the victims of the crime, are losing faith in the present justice system. But, Uganda, did ratify the Rome Statute, and the President Yoweri Museveni(YOWERI MUSEVENI ORDERS GUARDS TO SHOOT AND KILL CIVILLIANS, 2010), himself referred case before the International Criminal Court, and in consequence of that arrest warrant was issued for five times, but the accused RaskaLukwiya, in case of (Prosecutor v. Raska Lukwiya- Warrant of Arrest, 2005)cheated the system and died, which made him unaccountable for the war crimes so made as against the humanity. Similar situation arose in case of (Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen- Warrants of Arrest, 2005), where the preparators accused of the crime against humanity remained unchecked and stayed in the very society where the crime was committed. So, it majorly it depicts that, the preparators can remain unaccountable for their eminent evil deeds. In (Prosecutor v. Bosco Ntaganda- Warrant of Arrest , 2006), the accused faced the charges for conducting war crimes, and is not arrested in right time and remained in the very society. So, it can be said that, the Article 27 of the Rome Statue(Article 27- Irrelevance of official capacity, 1998) was comprised in both cases of (Prosecutor v. Bosco Ntaganda- Warrant of Arrest , 2006)and also for (Prosecutor v. Raska Lukwiya- Warrant of Arrest, 2005), since both the cases were referred before the International Criminal Court but did not met the desired circumstances. As, in Sudan case for (Prosecutor v. Omar Hassan Ahmad Al Bashir- Warrant of Arrest, 2009), the very objectives of the International Criminal Court get reflected, since the arrests warrants was duly issued but the fate is similar, and that is the suspects are free.
Secondly, the problem with the International Criminal Court is that the very process is subject to enormous delays, since the complexity in war crimes is inevitable. Though the prosecution of the war related crimes is at a very basic level, still delays can always be mended and also avoided. It is a fact that, in war crimes, the truth does not often emerge at the first instance, so there seems to be a lack of balance in proportioning the expediency of justice to allowance in having delays. As it is understandable that, war crimes cannot be conducted with quicker investigations, since at times of conflict the war crimes are conducted and after that passing of time, the criminal justice cannot be independent. Furthermore, the preparators like that of the Sudan case in (Prosecutor v. Omar Hassan Ahmad Al Bashir- Warrant of Arrest, 2009), might still be at power, and hence the difficulty persists.
Secondly, the problem with the International Criminal Court is that the very process is subject to enormous delays, since the complexity in war crimes is inevitable. Though the prosecution of the war related crimes is at a very basic level, still delays can always be mended and also avoided. It is a fact that, in war crimes, the truth does not often emerge at the first instance, so there seems to be a lack of balance in proportioning the expediency of justice to allowance in having delays. As it is understandable that, war crimes cannot be conducted with quicker investigations, since at times of conflict the war crimes are conducted and after that passing of time, the criminal justice cannot be independent. Furthermore, the preparators like that of the Sudan case in (Prosecutor v. Omar Hassan Ahmad Al Bashir- Warrant of Arrest, 2009), might still be at power, and hence the difficulty persists.
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It is true that a criminal court is expected to deliver justice, without any ordinate delay. But, the expectations to be set must be realistic. Like all other judicial institutions, the International Criminal Court have the lacunas, the arrest warrants do stay in pending conditions for ages. So, the delay that surfaces for executing the warrants happens only due to the non- cooperation from the state and also from the non- state parties. The trials when commenced late, cannot be held to be the fault of the Court, since, a Court cannot ask the defence to not challenge any evidence, so the attempts if any so taken by the International Criminal Court in denying the exercise of the due process rights of the accused will only be highlighted as an illegitimate proceeding. Again, the crimes so tried by the International Criminal Court, is only crimes which are war crimes or genocides, and each and every case varies, so one size fitting all is an improbable idea. Furthermore, there is lesser ratifications by the state, which again lessens the effectivity of the International Criminal Court. But, with the recent conviction, of Ratko Mladi?, it can only be said that the International Criminal Court becoming successful, despite the challenges so faced by it.
References
Article 27- Irrelevance of official capacity, 1998. Article 27- Irrelevance of official capacity. [Online]
Available at: https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf
Article 98- Cooperation with respect to waiver of immunity and consent to surrender, 1998. Article 98- Cooperation with respect to waiver of immunity and consent to surrender. [Online]
Available at: https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf
Charter of the International Military Tribunal, 1945. Charter of the International Military Tribunal. [Online]
Available at: http://www.un-documents.net/imtchart.htm
INTERNATIONAL MILITARY TRIBUNAL- FOR THE FAR EAST, 1946. Tokyo Tribunal. [Online]
Available at: http://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.3_1946%20Tokyo%20Charter.pdf
Maparura, S., 2010. Justice for Export: Africa and the International Criminal Court. s.l., CONSULTANCY AFRICA INTELLIGENCE.
Marle, M. K., 1999. The International Criminal Court: Assessing the Jurisdictional Loopholes in the Rome Statute,.
Prosecution v. Ghankay Taylor (2011).
Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman- Warrant of Arrest (2007).
Prosecutor v. Bosco Ntaganda- Warrant of Arrest (2006).
Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen- Warrants of Arrest (2005).
Prosecutor v. Omar Hassan Ahmad Al Bashir- Warrant of Arrest (2009).
Prosecutor v. Omar Hassan Ahmad Al Bashir- Second Warrant of Arrest (2010).
Prosecutor v. Raska Lukwiya- Warrant of Arrest (2005).
Prosecutor v. Tadic- Decision on Jurisdiction (1995).
Rome Statute- International Criminal Court, 1998. Rome Statute of the International Criminal Court. [Online]
Available at: https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf
The Observer- International Criminal Justice, 2017. World justice is failing the innocent when tyrants kill with impunity. [Online]
Available at: https://www.theguardian.com/commentisfree/2017/dec/17/observer-view-international-law-criminal-court
Wenaweser, C., 2010. Opening remarks by the President of the Assembly, Ambassador. [Online]
Available at: https://asp.icc-cpi.int/iccdocs/asp_docs/RC2010/Statements/ICC-RC-statements-ChristianWenaweser-ENG.pdf
YOWERI MUSEVENI ORDERS GUARDS TO SHOOT AND KILL CIVILLIANS, 2010. Yoweri Museveni Orders Guards to Shoot and Kill Youth, FREE UGANDA. [Online]
Available at: https://freeuganda.wordpress.com/2010/03/17/ugandayoweri-museveni-orders-guards-to-shoot-and-kill-youth/
Available at: https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf
Article 98- Cooperation with respect to waiver of immunity and consent to surrender, 1998. Article 98- Cooperation with respect to waiver of immunity and consent to surrender. [Online]
Available at: https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf
Charter of the International Military Tribunal, 1945. Charter of the International Military Tribunal. [Online]
Available at: http://www.un-documents.net/imtchart.htm
INTERNATIONAL MILITARY TRIBUNAL- FOR THE FAR EAST, 1946. Tokyo Tribunal. [Online]
Available at: http://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.3_1946%20Tokyo%20Charter.pdf
Maparura, S., 2010. Justice for Export: Africa and the International Criminal Court. s.l., CONSULTANCY AFRICA INTELLIGENCE.
Marle, M. K., 1999. The International Criminal Court: Assessing the Jurisdictional Loopholes in the Rome Statute,.
Prosecution v. Ghankay Taylor (2011).
Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman- Warrant of Arrest (2007).
Prosecutor v. Bosco Ntaganda- Warrant of Arrest (2006).
Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen- Warrants of Arrest (2005).
Prosecutor v. Omar Hassan Ahmad Al Bashir- Warrant of Arrest (2009).
Prosecutor v. Omar Hassan Ahmad Al Bashir- Second Warrant of Arrest (2010).
Prosecutor v. Raska Lukwiya- Warrant of Arrest (2005).
Prosecutor v. Tadic- Decision on Jurisdiction (1995).
Rome Statute- International Criminal Court, 1998. Rome Statute of the International Criminal Court. [Online]
Available at: https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf
The Observer- International Criminal Justice, 2017. World justice is failing the innocent when tyrants kill with impunity. [Online]
Available at: https://www.theguardian.com/commentisfree/2017/dec/17/observer-view-international-law-criminal-court
Wenaweser, C., 2010. Opening remarks by the President of the Assembly, Ambassador. [Online]
Available at: https://asp.icc-cpi.int/iccdocs/asp_docs/RC2010/Statements/ICC-RC-statements-ChristianWenaweser-ENG.pdf
YOWERI MUSEVENI ORDERS GUARDS TO SHOOT AND KILL CIVILLIANS, 2010. Yoweri Museveni Orders Guards to Shoot and Kill Youth, FREE UGANDA. [Online]
Available at: https://freeuganda.wordpress.com/2010/03/17/ugandayoweri-museveni-orders-guards-to-shoot-and-kill-youth/
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